The Conviction Rate in IDF Tribunals: Is it Too High?

One anti-Israel talking point that has been cropping up recently is the claim that nearly 100 percent of trials of Palestinians in Israeli military courts in the West Bank end in convictions. This statistic has been repeated in Newsweek and in the Washington Post.

The main source for this claim is a 2011 report from Haaretz, which cites “data in the military courts’ annual report, which has been obtained by Haaretz.” There is no link to the report, nor any title given to identify it, and it does not appear to be publicly available.

According to the report, 9,542 cases were wrapped up in 2010, of which 2,016 involved hostile terror activity, 763 disorderly conduct and the rest Palestinians staying illegally in Israel, traffic offenses and criminal activity.

The report states that 25 cases ended in full acquittal, meaning that the conviction rate is 99.74 percent.

The implication of those who repeat the statistic in the context of anti-Israel articles is that the high conviction rate is evidence that the Israeli military courts are lacking in due process, and that the Palestinian defendants who are tried in them are not being treated fairly. A closer look at the facts, however, reveals that this is not so.

The statistic is based on a single year of data, which is now seven years old. There is no indication of whether this would be true for 2016 or for any other year. Beyond that, however, the numbers alone, devoid of context, don’t give the full picture of the process in the Israeli military courts in the territories. The statistic, therefore, is highly misleading.

Criminal prosecutions differ from civil (that is, non-criminal) cases in one very important respect: unlike civil plaintiffs, a criminal prosecutor has an obligation to bring only those cases in which there is substantial evidence to support a conviction. As a comparison, the American Bar Association’s Model Rules of Professional Conduct provide, in Rule 3.8, Special Responsibilities Of A Prosecutor:

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause….

If prosecutors are living up to this obligation, one would expect a high conviction rate. Indeed, according to a 2011 report discussing conviction rates in 2010 (the same year as the Haaretz data) the US military’s “conviction rate for all crimes is more than 90 percent.” This rate includes conviction for all crimes including sexual assaults; the sexual assault conviction rate was only 27%, bringing the total conviction rate down.

In US federal civilian criminal courts, the conviction rate is slightly higher. For fiscal year 2015, the most recent year for which data is available, 94.2 percent of criminal defendants in federal district courts either pleaded guilty or were convicted, and 91.8 percent of criminal defendants in federal magistrate courts either pleaded guilty or were convicted.1

In Israeli military courts, however, the prosecutor’s obligation is even more stringent than in American civilian or military courts. CAMERA spoke to Maurice Hirsch, the former IDF Head of Military Prosecutions in Judea and Samaria, a Lieutenant Colonel with 20 years of prosecutorial experience.

Colonel Hirsch explained that, in the Israeli military system in the West Bank, a defendant who is acquitted is entitled to both damages and attorney’s fees. Such an award, of course, would be paid from the public purse, and would be in addition to the waste of public resources in the form of the prosecutor’s own time spent on a failed prosecution.

For this reason, IDF prosecutors are extremely careful about which cases they bring, and they only bring indictments in cases in which they have a high chance of success. Colonel Hirsch told CAMERA that during the time that he was in charge of the military prosecutors’ office, his instruction to his prosecutors was, “if you have any doubt, don’t bring an indictment.”

With such exacting standards for indictment, one would expect that the vast majority of criminal defendants would accept plea deals rather than gamble on a trial, and in fact that is exactly what happens. The total number of convictions actually consists of two types of cases: cases in which a conviction was reached after trial, and cases that ultimately result in plea deals.

Of the cases that do go to trial, and don’t settle, many result in acquittal on some of the charges and conviction on other charges. Haaretz also claimed that “4 percent of the cases result in at least partial acquittal on one or more of the charges.” This figure, however, is inconsistent with other findings. A 2010 law journal article by Zvi Lekach and Amir Dahan, which examined data from 2008, found that of all individual charges, 55.75 percent of charges result in either an adjudicated conviction or guilty plea with 40.42 percent of charges being dropped as part of a plea bargain, and 3.82 percent resulting in adjudicated acquittals.

In light of this information – information that the Haaretz reporter that wrote the 2011 report does not appear to have sought – a high conviction rate is to be expected. It’s a sign, not of corruption in the courts, as those with anti-Israel agendas would have us believe, but of prosecutors thoroughly vetting their cases prior to indictments – as they should.

Shlomi Ben-Meir provided research assistance

1. defendants that were transferred, diverted to a probationary system, or had proceedings suspended by the court or dismissed other than by the court were omitted from this calculation.